Endangered Species Act Basics & Section 7 Consultation Strategies for Hydropower Relicensing & License Amendme

1. Endangered Species Act Basics & Section 7 Consultation Strategies for Hydropower Relicensing & License Amendments Cherise M. Oram Stoel Rives LLP Hydropower Relicensing Portland, Oregon May 31, 2006

2. Section-by-section review Listing Take prohibition Section 7 Consultation Informal consultation Formal consultation The biological opinion Strategic section 7 considerations The proposed action Early discussions Initiating consultations Reviewing the BiOp Proposed species/habitat Effects analysis Important components Recovery standard Environmental baseline What if it’s Jeopardy? Terms and conditions Reinitiation language Today’s Presentation

3. Agency Roles Action Agencies • Federal Energy Regulatory Commission • Corps • Forest Service Consulting Agencies • U.S. Fish & Wildlife Service • terrestrial and freshwater species, plants • National Marine Fisheries Service • marine species

4. Species Listing (Section 4) • Any taxonomic species • Fish • Wildlife • Plants • Distinct population segment/ESU • Genetically distinct • Geographically discrete

5. Critical habitat (Section 4) • Essential for conservation of the species • May include unoccupied habitat • One of the few parts of the ESA that involves economic analysis • Has regulatory teeth only in the Section 7 consultation context

6. Take Prohibition (Section 9) • Section 9 prohibits a person from taking an endangered species. • By regulation, the applicable Service can apply the Section 9 take prohibition to threatened species (and usually do). This is a “4(d) Rule”.

7. What is a “take”? • “Take” mans to harass, harm, hunt, wound capture or kill a species, or attempt to do any of those things. • “Harm” means an act which “actually kills or injures wildlife,” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding and sheltering.” • Take is subject to civil and criminal penalties.

8. Direct Take Authorization For studies, hatchery broodstock collection, mitigation and enhancement actions, etc. • Scientific research permit • Enhancement permit

9. Incidental take authorization Two ways to obtain incidental take authorization: • Formal section 7 consultation • Section 10 habitat conservation plan (HCP)

10. Federal Consultation (Section 7) • Section 7 requires a federal action agency to ensure that any action it • “authorizes,” “funds” or “carries out,” and • that “may affect” listed species • Is not likely to • jeopardize listed species by appreciably reducing the likelihood it will survive and recover in the wild • adversely destroy or modify critical habitat

11. ESA “Applicant” = License Applicant • An “applicant” is defined as: • Any person who requires formal approval or authorization from a federal agency • Actions that may require section 7 consultation include: • FERC licenses, Corps 404 permits, USFS actions to implement enhancement funds on forest lands • Special role in consultation • “designated non-federal representative” • provide data and information; review drafts • will implement conditions required as a result of consultation • get incidental take coverage

12. Initial Consultation Process • Agency action, “may affect” determination • Preparation of biological assessment/evaluation by • Action agency or • Applicant as “designated non-federal representative” • Submit BA/BE to Service with either: • “likely to adversely affect” and request for formal consultation • GO TO FORMAL CONSULTATION • “no likely to adversely affect” and request for concurrence • INFORMAL CONSULTATION CONCLUDED

13. Informal Consultation Summary

14. Informal Consultation • No biological opinion • No incidental take authorization • Exchange of BA/BE and concurrence creates administrative record documenting that Service analyzed issue and the action is not likely to adversely affect the species or habitat

15. When is “Formal” Consultation Required?

16. Formal Consultation: the BiOp • Evaluates effects of action • Includes indirect effects • Includes interrelated and interdependent effects: part of a larger action and depend on the larger action for their justification; have no independent utility apart from the action under consideration. 50 C.F.R. § 402.02 • Considers environmental baseline • Considers cumulative effects (future state & private actions) • Includes “conference” on proposed species • Results in a “jeopardy” or “no jeopardy” determination • Results in “adverse modification” or “no adverse modification” for critical habitat

17. “No Jeopardy” BiOp • Allows the action to move forward • Includes “Reasonable & Prudent Measures” • “Terms & Conditions” implement the RPMs • Cannot change the scope, duration, timing, location • Cannot result in more than a “minor” change • Authorizes Incidental Take

18. “Jeopardy” BiOp • Action agency cannot move forward with action as is • Service can propose “Reasonable and Prudent Alternative” (RPA) • RPA must be reasonable, feasible • RPA can require more than minor changes • If no RPA, action cannot move forward

19. Formal Consultation Summary

20. Reinitiation of Consultation • Required if action agency has retained discretion and: • The amount or extent of incidental take is exceeded • New information reveals effects not previously considered • Action modified in a way that effects species or habitat • New species listed or habitat designated that may be affected

21. Strategic Section 7 Considerations • What can an “applicant” do to ensure that: • Action is properly considered • Best science is used • Biological opinion is defensible • Conclusion is “No Jeopardy” • Terms and conditions are properly limited

22. What is your proposed action? • The applicant (licensee) and action agency (FERC) define proposed action. • “The Services can evaluate only the Federal action proposed, not the action as the Services would like to see that action modified.” - Joint Endangered Species Consultation Handbook at 4-32.

23. Early discussion with Service • Important to work with the Service early to understand the likely effects. • If it’s likely a “no jeopardy” conclusion, there is little reason to modify the proposed action. The Service will impose terms and conditions to minimize any incidental take. • If it may be a “jeopardy” conclusion, work to modify your proposed action to reduce the possibly jeopardizing effects.

24. Initiating consultation • Applicants: prepare your own biological assessment/ evaluation. • Allows you to clearly define the proposed action. • Establishes a record supporting the effect levels you believe are appropriate.

25. Reviewing the BiOp • Regulations allow licensee to request draft biop and provide comments through FERC or other action agency. 50 C.F.R. § 402.14(g)(5). • When Service shares draft with FERC, FERC posts to docket – this is unique to hydro. • Nothing in the statute or regulations prohibits Services from sharing with the licensee directly. • Exchange would be subject to FOIA and part of administrative record. • Sharing directly allows licensee to work with the Service to provide the special input contemplated by regulations.

26. Proposed Species & Habitat • Include species and critical habitat that is proposed for listing. • This minimizes opportunities for reinitiation later when those species are listed or habitat is designated. • Service simply confirms upon listing/ designation that the biop’s analysis still applies.

27. Effects Analysis • Where there are data gaps or uncertainties, Service must make assumptions about effects. • Avoid assuming very uncertain positive impacts of mitigation. • Makes biop vulnerable to challenge. • If positive effects are not realized, Service may reinitiate. • Instead err conservatively in favor of the species. If the worst case is true, the biop still covers the action. • Make sure analysis addresses action’s potential effects on opportunities for recovery.

28. Role of Recovery in BiOps • Gifford Pinchot Task Force v. USFWS • Invalidated Services’ definition of “adversely modifying or destroying” critical habitat as occurring when action appreciably reduces habitat value for both survival and recovery • Reduction of recovery alone was not sufficient under regulations • Resulted in keeping focus on survival • Evaluation of critical habitat impacts must consider whether action diminishes habitat values for both survival and recovery • Puts focus on both survival and recovery • National Wildlife Federation v. NMFS • extended Gifford Pinchot finding to same language in definition of “jeopardy” • BiOps must evaluate effects to species’ opportunity to recover

29. Should Include: Past actions Past effects of a proposed action that is being re-approved (e.g., past ops) Past and future effects of existing structures (dams) Service considers impact in conducting overall analysis But effects are not attributed to proposed action Includes all future effects of action being analyzed For actions being re-authorized, considers effect of continuing action for term of next permit/license – not just incremental change from previously authorized action Terms and conditions imposed to minimize effects of action’s incidental take Environmental Baseline vs. Proposed Action

30. What to do when you hear “Jeopardy” • If draft is jeopardy opinion, generally wise to: • Stop the process • Work with the Services • Revise proposed action to avoid jeopardy • Benefits of revising to meet “no jeopardy” standard: • RPA that Service proposes as a result of “jeopardy” determination may include significant actions required to avoid jeopardy -- and is not limited to minor changes • Revising proposed action keeps you in control of action and how it is revised to avoid jeopardy • Revising action to avoid jeopardy builds better record for future litigation than defending RPA

31. RPMs and T&Cs • An RPM is an action the Service believes is “necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take.” • 50 C.F.R. § 402.02 • RPMs and terms and conditions “cannot alter the basic design, location, scope, duration or timing” and “may involve only minor changes.” • 50 C.F.R. § 402.14(i)(2) • An RPM or T&C must either minimize or monitor the effects of incidental take. • 50 C.F.R. § 402.14(i)(2), (3)

32. Things to watch for: • RPMs or T&Cs that go beyond basic design, location, scope, duration or timing. • RPMs or T&Cs that involve more than minor changes to the proposed action. • RPMs or T&Cs aimed at extensive studies rather than just monitoring to ensure compliance with authorized take level. • Mitigation measures (the Service can only require minimization).

33. Reinitiation Language • Services generally include the following language from their Handbook: “In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation.” Handbook at 4-60. • Operations need only be modified if the additional take constitutes an “irreversible or irretrievable commitment of resources … which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives” to jeopardy. 16 U.S.C. § 1536(d). • Suggest removing language, working with Service to determine effect of exceeding take if it occurs.

34. Strategic Lessons • Applicant should keep control over the proposed action. • Work toward a “no jeopardy” biop. • Ensure the effects analysis is realistic (even cautious) to avoid reinitiation later. • Question how the effects of existing structures are considered. • Evaluate effects on proposed species/habitat. • Consider effects of action on species’ opportunities for recovery. • Ensure that RPMs and T&Cs are limited to minimizing and monitoring and involve no more than minor changes. • Be an active participant in the consultation process to protect your interests, insist on the best science, and build a defensible record that supports your action